Highways Act 1980 claims

Two recent cases have increased the burden of responsibility on local authorities to maintain a thorough and meaningful repair and inspection policy.

Thomas v Warwickshire County Council [2011] EWHC 772 (QB)

The claimant suffered a severe head injury following a fall from his bicycle when he hit a small spillage of concrete that had set and become fused to the road. The main issue for the court to decide whether or not the spillage of concrete formed 'part of the fabric of the highway'.

Under s41 Highways Act 1980, a local authority has an obligation to maintain the 'fabric' of the highway. Previous cases have held that obstructions or surface lying material have not been deemed to be within the scope of 'the fabric' of the highway.

The local authority in this case argued that the spillage of the concrete was a 'contaminant' and was in the same category as either oil or mud. The fact that the concrete had solidified into a mechanical bond did not alter that position. There was no intention on the part of the local authority that the concrete should become part of the fabric or surface of the road because it was common ground that it was spillage which was caused accidentally.

The court, however, accepted the claimant's argument that the spillage was not surface lying material. Once the concrete had hardened and bonded to the road, it became part of its 'fabric'. The spillage became permanent, or at least, long-lasting and as such, the local authority had an obligation to maintain and/or repair under s41.

Comment: This case has new implications for local authorities as concrete spillages are not uncommon. This ruling adds further definition to 'the fabric of the road,' now adding spillages and deposits that may become permanent by way of bonding to the already defined potholes and physical defects. The courts in this case have given a clear warning that local authorities need to review and amend inspection and repair policies.

Wilkinson v City of York Council [2011] EWCA Civ 207

The claimant was injured when she fell from her bicycle as the front wheel hit a pothole in the road. The local authority pleaded a defence under s58 Highways Act 1980 which allows a council or highways agency to defend claims on the basis that they had taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly.

The prescribed frequency of inspection under the local authority's code was annual. The local authority inspected the road approximately ten months prior to the accident and no defect was recorded. However, the national code of practice suggested that the road in this case was a type that ought to have been inspected every three months. The local authority's s58 defence argued that the deviation from the national code was a matter of limited manpower and financial resources. The deviation was not based on any risk assessment, as the national code suggested it ought to be.

The Court of Appeal found that financial considerations are not a factor when looking at whether the local authority had done what was "reasonably required." Under s58 this required  "an objective judgment based on risk." The s58 defence was not designed for a local authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe. Consequently, the Court of Appeal found in favour of the claimant.

Comment: It would be advisable for local authorities to ensure that the frequency of inspections are set following a process of risk assessment based on locality, traffic levels and other relevant factors so that any deviation from the national code of practice is readily explicable. Financial considerations in itself will not fall to be considered when deciding whether the local authority has done what is reasonably required to ensure the highway is not dangerous.

Ashfords' Personal Injury Team has extensive experience in all areas of personal injury claims, ranging from accidents on public property or at work to road traffic accidents and clinical negligence.  If you have had a claim made against you and would like to discuss your options, please contact Flora Wood, Partner, on 01392 334020.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.